The abortion game goes something like this. A Republican politician will make noises about what an evil it is to kill the unborn and proposes some sort of incremental improvement – a ban on partial-birth abortions, for example. This reassures the social conservatives in the Republican base, but only a little. What’s more important is that the token pro-life initiative outrages the Left, which then begins to splutter about the end of "reproductive rights." This is what really heartens and motivates the social conservatives. There then follows a rhetorical exchange between the publicists of both camps, each trying to surpass the other in its moral hysteria. In practice this means a lot of talk about Nazis and endless emoting over women and small children.

Both parties benefit from this game because it riles up some very committed voters and campaign volunteers. The trick is to get the other side either to go too far or else not far enough. If Republicans say nothing about abortion, they risk losing momentum. But if they say too much and become too closely identified with the issue, they lose the mushy middle, the sucker-mom voters whose chief concern at the polls is to avoid making a hard decision. Consensus voters, in other words; they have no particular principles one way or the other, and they don’t like to be reminded of that fact by militants of either side.

The Democrats played this game and lost in 2002. In Missouri they tried too hard; in the course of the campaign for the US Senate from Missouri, more of the Jean Carnahan placards I saw had Planned Parenthood logos and slogans on them than not. The pro-abortion zealots made it impossible for anyone with reservations about abortion to vote for Carnahan. They made it impossible as well for anyone who simply wanted to avoid the issue to vote for her. The Republican candidate, James Talent, was outspokenly anti-abortion, but his signs did not advertise his allegiance as prominently as Carnahan’s did. Talent’s base was happy and the consensus voters were not repelled. So he won. And now, with the 30^th anniversary of Roe vs. Wade, a new round is starting. The Washington Post reports that Karl Rove has already taken what I’ve described above as the first step.

It’s a shell game. As real as the effects of the policy changes wrought by either side are – and things like the abuse of racketeering laws against pro-life protestors and state legislatures limiting the abortion "rights" of minors do accomplish something – the only permanent winner in the battles over abortion is the State. William Anderson described in part how this happens: pro-life conservatives have been duped into surrendering their decentralist and anti-statist principles in the name of a federal crusade against abortion. It’s kept some Christians and conservatives loyal to the Republican Party even as the party expands government in every direction. The ludicrous Left, on the other hand, may talk about getting government out of the bedroom, but it’s all for getting government into everything else. Not that the "Keep your rosaries off my ovaries" types really want government out of the bedroom, either. You didn’t see them protesting the California Supreme Court’s recent ruling that stretched the definition of rape to dubious lengths.

Abortion politics is futile because liberal democracy cannot resolve the kinds of questions involved in the dispute. Those questions are pre-political, having to do with what constitutes membership in the human race and with what rights accompany that status in our society. By subjecting the dispute to the "democratic process," both sides concede to the State and to the mass of voters the authority to determine who’s human and who isn’t. The problem with this should be immediately apparent. Not only can one very easily imagine the State and the masses making objectively wrong decisions, but also, given the fickle and arbitrary nature of bureaucrats, the masses, and judges, a decision that’s "right" today can be "wrong" tomorrow. Subjecting these kinds of fundamental questions to the democratic process amounts to denying the existence of truth itself, or at least subordinating truth to power. This happens to be the inverse of what the liberal state was originally supposed to do, to uphold certain pre-existing conventional and metaphysical rights.

Some seven years ago the self-described "theocon" (i.e., Catholic social democrat) magazine First Things took this line of thought seriously in a symposium entitled "The End of Democracy? The Judicial Usurpation of Politics." The symposium tiptoed close to calling the federal government illegitimate and suggesting civil disobedience as a remedy. Imagine a magazine with Gertrude Himmelfarb on its editorial board saying that! Actually, Himmelfarb quit the First Things editorial board over her disagreement with those sentiments. In her letter of resignation she wrote:

Slavery did not illegitimize the Founding, as some radical historians suggest. Nor did the Vietnam War (an "unjust war," many claimed) illegitimize the government of that time. By the same token, the appalling errors of the present judiciary (in respect to abortion particularly) do not illegitimize the government today. If abortion is the litmus test of a moral law that cannot be violated by positive law, then all of the Western democracies that legalize abortion-and do so by the legislative rather than judicial process-are illegitimate. (Indeed, the only legitimate governments would be Iraq, Iran, and the like.)

The Editors' Introduction cites the American Revolution as if we are now in a similarly revolutionary situation-an analogy that, in my opinion (and that, I believe, of the overwhelming majority of Americans), is absurd and irresponsible. It also cites a papal encyclical affirming the supremacy of the moral law. But the pope did not declare Nazi Germany or the Soviet Union illegitimate, despite the genocide and mass murders, which were surely as much violations of the moral law as abortion.

The use of the word "regime" compounds the problem, for it suggests that it is not the legitimacy of a particular institution or branch of government that is at stake but the very nature of our government.

Himmelfarb is a smart person. Her conclusions are wrong but her analysis isn’t. Taking the pro-life argument seriously does indeed call into question the legitimacy not only of a particular administration, but of the State in general. It certainly puts the kibosh on the old liberal idea of the State as an institution that uncontroversially protects given rights. The pro-abortion argument, if it’s not just a smokescreen for feminist statism, leads to a conclusion that’s not altogether different, since why should a genuinely essential right be conditional upon the whims of a handful of judicial appointees, or even the vagaries of the entire electorate? It’s not the kind of question that gets addressed in the usual abortion debate. It’s also not the kind of question that matters in the daily lives of most people, including those of most activists on either side of the abortion battle. So it gets swept under the rug, and the abortion game continues. Since the root issues – the State, its legitimacy, and the nature of man – are never addressed, there’s little for either side to do but shout a little, or a lot, louder and contrive ever more clever ways to justify the unjustifiable. That some real good – reducing abortion – can be achieved through the political process only serves to disguise the fact that the process itself is not about what’s good, it’s about power.

January 24, 2003